Vol. 16 No. 7 (July, 2006) pp.561-564

MAPPING MARRIAGE LAW IN SPANISH GITANO COMMUNITIES, by Susan G Drummond.  Vancouver: UBC Press, 2005.  288pp. Hardcover. $85.00. ISBN: 0-7748-0925-6.  Paper (2006). $29.95.  ISBN: 0-7748-0926-4.

Reviewed by Kisch Beevers, School of Law, University of Sheffield.  Email: k.a.beevers [at] sheffield.ac.uk.

On reaching the end of this extremely complex book and reflecting on the whole, it is awe-inspiring to remember that it has been written by a single author.  The exactitude of its title can only really be appreciated through devouring its contents as Susan Drummond skilfully guides the reader through a maze of disciplines informing an intriguing depth of analysis.  This analysis is tantalisingly punctured occasionally by short forays into a description of the author’s experiences within the Gitano community of Jerez de la Frontera, Andalucia, offering light relief from the complex critical analysis but at the same time being reflective of it.  Although each chapter is somewhat distinct from the others, this is not a book that should be read out of order or in parts, because the multiplicity of its themes and arguments are integral parts of the thesis as a whole.  The central paradigm unifying the scales of this thesis is the un-enacted common law (ius commune) rules of the Jerezeano Gitano marriage rites, but if the reader is expecting the extrapolation of a Gitano marriage code, then he will be disappointed.

The style and prose of the introduction are rather theatrical, setting the scene of the ‘play’ that is to follow and promising to take the reader through a journey of discovery that seemingly parallels the journey undertaken by Drummond in her research and writing.  Although points are occasionally slightly over-worked in this initial chapter, the superb imagery employed in scene setting makes the reader hungry to begin the book’s journey but at the same time reticent to leave its prologue, where the reader is seduced and captured by techniques that lure him into a greed often witnessed in fictional novels of great worth.   A metaphoric map highlights this interdisciplinary itinerary between comparative law and legal anthropology with Drummond warning that, as such, the strict rigor of each of the disciplines is limited during the development of the “unstable model of the interactions between the scales of the local, the national, and the global.”

The book is then divided into three main chapters each identifying a different scale of concentration.  In each of these chapters the analytical text is interjected with short insights into Spanish culture, more specifically the culture of the Jerezeano Gitano communities.  These interjections on one level are snapshots of events that took place during Drummond’s seven-month stay in Andalucia, but they also serve to underline, and in a sense give authority to, the analysis of the main text.

The first chapter concentrates on the scale of the state through a discussion of the development of modern Spanish [*562] family law and analysis of the reforms of the last fifty years or so.  Almost obviously, the majority of the chapter is given to the socio-historical influence of the Catholic Church on Spanish family law particularly in the realms of marriage and divorce.   Here the reader finds the importance of not only the power of the Church and the reinforcing agreements and unifying laws, but also the significance of the Second Spanish Republic, the internationalisation of Spain, socio-economic changes of the 1950s, the changing role of women from juridical inferiority to formal equality, and, of course, of hispanidad.  The scenes in this chapter are drawn from the celebrations of Holy Week in Jerez, dramatising the struggle between State and Church, as the processions take on an unorthodoxy that underlies the emerging loosening of Church control.  

It is perhaps in this first chapter that the limited rigor of the disciplines is most keenly felt.  Although the chapter claims to address national Spanish family law and trends, almost all of the examples and illustrations are drawn from the Andalucian microcosm as if representative of the whole of Spain, rather than just one of the many extremely diverse cultures and socio-historical peoples that influenced the development of the Spanish state.  The dangers of over-representing Andalucia as representative of the state is reflected in the omission of the formal legal division of competence between State and Comunidad Autónoma (Autonomous Community).  Moreover, a mere mention of overriding local customary laws applicable in many parts of the state (derecho foral) is relegated to the middle of the second chapter, and there is no consideration of recent family law developments of same-sex marriages and ‘common law’ marriage registration.

The book as a whole contains a wealth of references to and analysis of many celebrated writers on the dominating themes of each chapter, but none more so than here in the first chapter where Drummond challenges, occasionally critically, the thesis of Kahn-Freund (1974).  Although she accepts that the Spanish law reforms of the last 20 years tend to confirm Kahn-Freund’s ‘thesis about the increasing homogenisation of family law in urban, industrial states,’ she also at times identifies that changing power of church on state is more complex than he made out.

Whereas the first chapter concerns the ‘scale of state,’ the second chapter moves on to a consideration of the ‘scale of culture.’    Drummond explains: “[T]he emphasis here is on the construction of culture, including the ways which cultures are delimited and reinforced by law.”  Here the reader is introduced to the lives and culture of the gypsy peoples of Jerez de la Frontera, specifically the Gitano/Flamencos, a mix of ancient peoples who came to this area of southern Spain by way of northern Africa.  This chapter also contains an interesting exploration of the origins of the gypsy peoples and their linguist connections to Sanskrit and Hindustan.  Much comparison is drawn between these Spanish Gitanos and the Roma as analysed by Weyrauch and Bell (1993).

The snapshots of this second chapter are of encounters with a variety of Jerezeano [*563] Gitanos, highlighting their poverty, their preference for colourful dress, the variety of ways to acquire money from those they meet, and the pollution code that dominates their lives.  These snapshots are linked to the theoretical discussions of legal pluralism and the autonomous systems of law existing within and alongside official state law.  They also set the scene for a consideration of the socio-historical thesis linking the emergence, treatment and identity of the Spanish gypsy to early state formation, exploring their historical development against the backdrop of persecution exemplified by the disastrous round-up and incarceration of Spanish Gitanos in 1749.  The chapter draws to a close with a discussion of gitanitude, using a skilful analysis of the attempted marginalisation of an upwardly mobile Gitano lawyer, as well as a consideration of pure flamenco, its relationship to gitanitude and its incorporation into Gitano culture.

Chapter Three brings together the analyses of the previous chapters through the introduction and discussion of the specific within the general.  In this chapter Drummond looks closely at the family law of Jerez’s Gitano communities while identifying and analysing the relationship between state law and customary law through a discussion of Tulley’s concept of the hidden constitution and a consideration of the complexities of common law (ius commune).  This discussion of enacted and un-enacted common law and the concept of the ‘hidden constitution’ is used by the author to mount a scathing attack on the European Union’s quest for harmonisation of private law, charging the civil lawyers with a complete lack of understanding of the importance of the hidden constitution embedded in the English common law.  Although seemingly out of place at first reading, this section does cause the reader to reflect and realise that the chapter’s focus, although based on Gitano marriage, does have a much wider impact that is symptomatic of the complexity of this work.

In between theoretical analyses, the reader here discovers the intricacies of the Gitano marriage laws from the pedimiento (asking of the hand), the testing of virginity, through to the point at which the couple are considered married, only then to discover that there is no set of rules to which the entire community adheres that can be identified as a marriage code.  Indeed, the chapter finishes by asking the question ‘what is the general form of Gitano family law?’  Much richer, longer, snapshots of Gitano marriage incidents are described as custom or personal choice rather than ‘law’ since each incident initially explored as ‘law’ is countered by generalised exceptions pointing to the opposite being more a part of ‘law’ than the incident itself.  Each so-called marriage evidences such diverse incidents that, as Drummond states, it is “tempting to conclude . . . that there is no such thing as Gitano family law.”  There is no single thread, no unifying rules, but each incident signifies a symbolic and public act underlying the pluralist and inclusive understanding of what law is, and the understanding of the ius commune that changes and develops with history and influence. [*564]

Finally a short concluding chapter returns to the theme of cartography as introduced in the introductory chapter, underlining the complexity of the issues confronting comparative law and legal anthropology.   By showing that the Gitano communities of Jerez de la Frontera do not fit in any of the accepted models in either discipline, that there is plurality in the un-enacted ius commune, Drummond concludes that European family law can only really be understood by analysing the multiplicity of its landscape.

Overall, Drummond has written a challenging, inter-disciplinary, sophisticated, complex, and multi-level study of the Jerezeano Gitano marriage laws within their socio-historical, national and international context that is a masterpiece of research and scholarship.

REFERENCES:

Kahn-Freund, Otto.  1974. “On Uses and Misuses of Comparative Law.” 37 THE MODERN LAW REVIEW 1-27.

Weyrauch, Otto Walter, and Maureen Anne Bell. 1993. “Autonomous Law Making: the Case of the Gypsies.”  103 THE YALE LAW JOURNAL 323.

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© Copyright 2006 by the author, Kisch Beevers.